Form and Substance in European Constitutional Law: The ‘Social’ Character of Indirect Effect

• DOI: http://doi.org/10.1111/j.1468-0386.2010.00517.x
• Date: 01 July 2010
• Author: Leone Niglia
• Published date: 01 July 2010

eulj_517439..457

Form and Substance in European

Constitutional Law: The ‘Social’ Character

of Indirect Effect

Leone Niglia*

Abstract: This article proposes to understand the constitutional discourse about individu-

als, rights and enforcement, as developed in the courtrooms, in relation to historic and

contextual circumstances. It focuses on the interface between indirect effect and social

policy, and argues that the creation of indirect effect has been integral to a judicial

strategy centred on the key concern for sustaining the balance between market freedom

and interventionism as achieved in the political process.

I Introduction

Analyses of the European Court of Justice (ECJ) led constitutionalisation story1typi-

cally centre less on substantive and more on formal aspects. Scholars see it as a legal

development in which the ECJ has established the well-known constitutional prin-

ciples, and domestic courts have faithfully acted on them and co-operated with the ECJ

in enforcing individual rights.2Received wisdom has it that all that happened was

driven by legal necessity. According to an authoritative description, the ECJ ‘won the

confidence’ of the domestic courts thanks to the skillful way it dealt with the legal

material available.3This article proposes a line of analysis that focuses more on

* Director of the Centre for European Legal Studies and Associate Professor of European Law/Reader,

School of Law, University of Exeter, UK; Jean Monnet Fellow, University of Michigan, School of Law.

I acknowledge support from the Carnegie Trust for the Universities of Scotland and the University of

Michigan, School of Law. Thanks to Eric Stein (Ann Arbor, University of Michigan) for comments on a

previous draft; and to two anonymous referees.

1‘Constitutionalisation’ is customarily defined as ‘the process by which the EC Treaties evolved from a set

of legal arrangements binding upon sovereign states, into a vertically integrated legal regime conferring

judicially enforceable rights and obligations on all legal persons and entities, public and private, within [the

sphere of application of EC law]’: A. Stone, Constitutional Dialogues in the European Community EUI

WP RSC No 95/38, at 1 as quoted eg in J.H.H. Weiler, The Constitution of Europe (Cambridge University

Press, 1999), 221, and in B. Rittberger and F. Schimmelfennig, The Constitutionalisation of the European

Union (Routledge, 2007), 1.

2Cf Karen Alter, Establishing the Supremacy of European Law (Oxford University Press, 2001), 39 (‘legal-

ism remains the dominant paradigm for analyzing legal integration in Europe’).

3Cf G.F. Mancini, ‘The Making of a Constitution for Europe’, (1989) 26 Common Market Law Review 595,

at 605–606. On the dominance of this understanding in general cf D. Chalmers, ‘EU Law and the Failure

of the European Social Scientific Imagination’, (2004) (Fall) EUSA Review 4, at 4 (‘“Law in society”

approaches...lookattheepistemology of the law, its vision of society: what image does it draw of human

European Law Journal, Vol. 16, No. 4, July 2010, pp. 439–457.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

substance and less on form. This approach is based on the belief that in order to really

understand Europe’s constitutional developments one must employ general theoretical

and historical accumulated knowledge on comparative constitutionalism that indicates

that constitutional actors typically perform their operations in the space of political

engagement and contestation.4The article submits that there are substantive, that is,

historic and contextual aspects that make the constitutional story really intelligible, and

discusses formal and substantive features of the constitutional story along these lines,

in the conviction that a simultaneous analysis of both is plausible and necessary for

advancing our knowledge.

The focus of the article is on the doctrine of indirect effect as introduced by the ECJ

in the eighties. In section II, I recall that the judge-made constitutional discourse

centred on ‘direct effect’, that has had the effect of establishing and enforcing the key

Community economic rights, at a certain point in time has been broadened to include

‘indirect effect’. In section III, I propose a way to understand why the ECJ has framed

the two-tier constitutional discourse of direct and indirect effect, in the light of a set of

contingent substantive choices made by the key social actors with access to the Com-

munity, in both legislative and administrative settings, aimed at creating a system ‘in

the nature of a market economy tempered by social welfare considerations’. The ECJ

constitutional move, I argue, has been conducive to that very project. The constitu-

tional doctrines have been part and parcel of a judicial strategy centred on the concern

for sustaining the balance between the guarantee of free commerce and intervention-

ism, as achieved in the legislative setting in which agriculture and commerce have been

placed under European discipline. Specifically, the judicial discourse of indirect effect,

I argue, has been devised with the purpose of sheltering from the encroachment of

Community law the heritage of social rights as developed in the nation state in the

second half of the past century. On the basis of this analysis in section IV, I then subject

to scrutiny the contentious doctrinal debate on the ‘legal meaning’ of ‘indirect effect’,

and propose a new understanding that relies on contextual aspects. In section V, I put

forward conclusive remarks on the value of the perspective that this article adopts for

our understanding of constitutional Europe. Below I address each argument in turn.

II Form

A The Making of Indirect Effect

Notably, more than two decades after Van Gend, and a full decade after Van Duyn,5the

European Court of Justice (ECJ) chose not to extend its direct effect doctrine to cases

of un-implemented or incorrectly implemented directives that individuals rely upon

relations; what ideologies, justified true-beliefs does it draw on; how do the internal structures of the law

reconstruct these; how do legal visions of society compete with other collective visions...Withsome

notable exceptions...thisdebateisabsentfromEUstudies’).

4The literature on the embedded character of constitutional material is obviously large. For example, cf the

defence of an ‘historic’, rather than a merely ‘normative’, approach to constitutionalism in general in

D.J. Calligan, ‘The Paradox of Constitutionalism or the Potential of Constitutional Theory?’, (2008)

Oxford Journal of Legal Studies 343 et seq, and criticising a recent study edited by M. Loughin and

N. Walker, The Paradox of Constitutionalism (Oxford University Press, 2007) for not being historic enough.

5Case 26/62, Van Gend en Loos [1963] ECR 1 (direct effect of treaty rules); and Case 41/74, Van Duyn

vHomeOffice[1974] ECR 1337 (direct effect of directives).

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